ESSA M. FAAL-Lead Counsel For TRRC

By Yankuba Jallow

Essa Mbaye Faal, the lead Counsel at the Truth, Reconciliation and Reparations Commission (TRRC), has debunked the public outcry regarding his gesture of giving a Commission witness a plot of land, saying it was done based on goodwill.

Counsel Faal said this on the 23rd of April 2019, in a press briefing held at the TRRC hall, during a question and answer session.

When questioned about the public outcry regarding the presentation of money to Mafuji Sonko, a witness of the TRRC. Faal said he will not talk deep about the issue; that for everything one does, people will always criticize it. He added that whether the criticism is genuine or important for some, does not matter because they will only look for one thing and criticize. Counsel Faal said if a group of people feel they want to help a victim and want to do it at the Commission grounds, why should anyone stop them. He said these are people who had suffered, and what is needed and expected is for Gambians to come out and give generously to them, for the restoration of their dignity; that the Gambia is a society where people will criticize certain things which is not worth criticizing.

Faal continued that he gave Mafuji (Sonko) a piece of land and did not regret it; that this is because the witness needed it and he has it. He further questioned what should stop him from giving to the witness, and the reason why some people would have problems with it. Faal said “as Gambians, we have to applaud charitable acts and embrace one another as friends, family, sisters and brothers”; that the country needs healing and “we cannot heal without embracing one another, and show kindness to each and other”. Faal said the gesture is meant for others to see it and emulate, so that other victims can have something; that what was done, was not done in the name of the Commission, or for the Commission, or by the Commission; that this is why his action was not an act of the Commission.

On the arrests and detention of JCB Mendy and others, Lead Counsel Faal said this should be directed to the Minister of Justice; that the arrest was done on the instructions of the Attorney General who was exercising his authority under the Constitution; that it is not a matter for the TRRC and cannot make comments on this particular issue. He said the Attorney General has certain responsibilities and exercises those responsibilities in his abundant wisdom. He said the TRRC has nothing to say about this except to reinforce that there is value in speaking the truth and there are also sanctions for lying during hearings at the Commission.

On whether the arrests of some witnesses who testified before the TRRC cannot be described as selective justice because there are others who were not arrested, Faal said this is a matter for the Attorney General to deal with, but that he has adequately dealt with the question in different fora. He said the Attorney General still has the powers regardless of whether the Commission can make referrals or not; that it should be borne in mind that the Commission cannot tell the Attorney General how and what to act on, because he has the responsibility to ensure that crimes are investigated and prosecuted. He said, “I cannot question the exercise of his discretion”.

On witness suggestions that the Commission needs to do more investigation than relying on (oral) testimonies, Lead Counsel Faal said hearings at the TRRC are investigative hearings; that they are intended to elicit the truth from witnesses regarding what had happened; that these witnesses may have different perspectives and different appreciation of the same set of events; that while some will have different motives, others may be more forthcoming with the truth; that others will want to lie for certain reasons, while others may not intend to lie, but may misunderstand issues. That it is only from these things that evidences of witnesses can be tested to help the Commission know where the truth lies.

‘‘When we sit here and ask questions and put forward particular theories, it does not necessarily mean we have accepted those theories as the truth. We are putting the theories to test the witness and for the witness to comment,’’ he asserts.

On the videos of those witnesses who were confronted and labeled as liars played to get the truth from the testimonies of others, Lead Counsel Faal said for the non-lawyer, it may appear that it does not make sense; but that for a Lawyer, this makes perfect sense; that there is what is called ‘‘divisibility of credibility’’ of witnesses; that when a person talks, it does not necessarily mean that everything he says is lies; that certain things that the person says may be true, whilst some may be lies; that it will not be wrong of him to know a lie and use it to confront another witness to obtain the truth. He said when they confront witnesses; they know the reason why they confront them with what and for what objective.  On the arrest of people who have allegedly tampered with witnesses, Counsel Faal said they cannot take a position on something they do not know; that there is speculation about the destruction of evidence at the NIA.

‘‘The Commission will not have a deliberate destruction of evidence and sit over it without doing anything about it. It is our responsibility to do something about it and be rest assured that we will do something about it. For now, we cannot just prejudge the matter and base it on speculation. We accept that there has been destruction of evidence and we bounce on the NIA because there should be fairness in this process.’’

On witnesses undergoing legal support Lead Counsel Faal said this is a no go area for him; that this is confidential information which he cannot pass to the press just like that.

‘‘I think it suffices for the public to know that there are adversely mentioned persons who are resorting to legal support in relation to their testimonies and I cannot go any further than that,’’ he concludes.  

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